Legal Services Commissioner v Quinn

[2015] QCAT 85

CITATION: Legal Services Commissioner v Quinn [2015] QCAT 85

PARTIES:	Legal Services Commissioner (Applicant/Appellant)
v
Michael James Quinn (Respondent)

APPLICATION NUMBER: OCR182-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Justice Thomas, President

Assisted by:
Mr Scott Anderson
Practitioner Panel Member

Ms Julie Cork
Lay Panel Member

DELIVERED ON: 24 March 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    That the name of the respondent be removed from the local roll of practitioners.

2.    That the respondent pay the costs of the applicant fixed at the sum of $2,500.00 within 30 days of the date of this order.

CATCHWORDS:

PROFESSIONS AND TRADES – LEGAL PRACTITIONERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT – TRUST MONEY – where the respondent is charged with 64 charges regarding management of trust accounts – where the respondent failed to properly administer a trust account – where the respondent kept improper trust records – where the respondent produced numerous deficiencies in trust ledgers – where the respondent illegally transferred funds from trust – where the respondent misappropriated trust funds – where the respondent pertained trust money in the general account – whether the respondent is a fit and proper person – removal from the roll

Legal Profession Act 2007 (Qld) ss 6(1), 248, 249, 259(1), 261, 418, 419, 420(1)(a), 456
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498
Attorney-General v Bax [1999] 2 QD R 9
Legal Services Commissioner v Michael Vincent Twohill [2005] LPT 001

Queensland Law Society Incorporated v Whitman (2003) QCA 438

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. The respondent was an Australian legal practitioner within the meaning of s 6(1) of the Legal Profession Act 2007 (“the Act”).

2. In disciplinary proceedings dated 11 July 2013, the applicant has outlined 64 charges against the respondent which, in broad terms, assert that the respondent:

   ·             Failed to properly administer a trust account.

   ·             Kept improper trust records

   ·             Produced numerous deficiencies in trust ledgers

   ·             Illegally transferred funds from trust

   ·             Misappropriated trust funds

   ·             Pertained trust money in the firm’s general account.

3. The conduct asserted against the respondent occurred between 24 April 2008 and 4 February 2010.

Legislation

1. Section 418 of the Act relevantly provides:

   Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

2. Section 419 of the Act relevantly provides:

   (1) Professional misconduct includes—

   (a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and

   (b) conduct of an Australian legal practitioner… that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

   (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice…, regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under the Act.

3. Conduct consisting of a contravention of a relevant law is conduct which is capable of constituting unsatisfactory professional conduct or professional misconduct.[1]

   [1]Legal Profession Act 2007 (Qld) s 420(1)(a).

4. As to “professional misconduct”, Thomas J in Adamson v Queensland Law Society Incorporated[2] said:

   The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.

   [2][1990] 1 Qd R 498 at 508.

Discussion

1. The respondent has informed the Tribunal that he does not propose to respond to the application or make any submissions or representations to the Tribunal in respect of the discipline application.[3]

   [3]Letter from Gilshenan & Luton Legal Practice to the Queensland Civil and Administrative Tribunal dated 10 September 2013.

2. The following is alleged in the discipline application.

Section 259

1. Section 259(1) of the Act provides that an Australian legal practitioner must not, without reasonable excuse, cause a deficiency in any trust account or trust ledger account or a failure to pay or deliver any trust money.

2. The discipline application sets out 32 occasions when there was a breach of s 259(1) of the Act.

Section 249

1. Section 249 of the Act provides that a law practice must hold trust money deposited in the general trust account of the practice exclusively for the person on whose behalf it is received and disburse the trust money only under a direction given by the person.

2. The discipline application sets out 22 occasions on which there was a breach of s 249 of the Act.

Section 261

1. Section 261 of the Act provides:

   (1) A law practice must keep in permanent form trust records in relation to trust money received by the practice.

   (2) The law practice must keep the trust records—

   (a) in the way prescribed under a regulation; and

   (b) in a way that at all times discloses the true position in relation to trust money received for any person; and

   (c) in a way that enables the trust records to be conveniently and properly investigated or externally examined; and

   (d) for the period prescribed under a regulation.

2. The disciplinary application sets out 9 occasions when there was a breach of s 261 of the Act.

Section 248

1. Section 248 of the Act provides that as soon as is practicable after a receiving trust money a law practice must deposit the money in a general trust account of the practice.

2. The disciplinary application sets out one occasion when there was a breach of s 248 of the Act.

3. The allegations made in the disciplinary application are not denied.

4. The Tribunal will proceed on the basis that the assertions made in the disciplinary application are correct.

5. The disciplinary application demonstrates that the respondent’s administration and management of his law practice trust account was in breach of various sections of the Act and its regulations and that the respondent failed to administer and manage the trust account in accordance with the standards of competence and diligence expected of a reasonable legal practitioner.

6. A practitioner is under a very serious duty to properly maintain trust accounts.[4]  In the case of Twohill, it was found that six breaches of the Trust Accounts Act 1973 (Qld) amounted to professional misconduct.

   [4]Legal Services Commissioner v Michael Vincent Twohill [2005] LPT 001.

7. In this case, the conduct of the practitioner is extreme.  The circumstances demonstrate serious and persistent breaches over a prolonged period of time.

8. In the circumstances, the conduct involved a substantial failure to reach a reasonable standard of competence and diligence and falls short to a very substantial degree, the standard of professional conduct which would be expected of members of the profession of good repute and competency.

9. In those circumstances, the respondents conduct amounted to professional misconduct as is contemplated by s 419 of the Act.

Penalty

1. It is open to the Tribunal to make any order it thinks fit including one of the orders which are set out in s 456 of the Act.

2. The respondent does not hold a current practising certificate, and has not done so since 4 May 2012.

3. Because of the persistent breaches of the standard expected of a solicitor over a prolonged period of time, the question arises whether the Tribunal should make an order recommending that the name of the respondent be removed from the local roll.

4. In this respect, the consideration is whether the respondent is a fit and proper person to be entrusted with the important duties and grave responsibilities of a solicitor.[5]

   [5]Attorney-General v Bax [1999] 2 QdR 9 at [12]; Queensland Law Society Inc. v Whitman (2003) QCA 438 at [37].

5. Legal practitioners must maintain high standards of integrity in the way in which they conduct themselves in the profession and particularly in the way in which they maintain monies held on trust for their clients. 

6. In this case, the respondent’s conduct was repeated and involved numerous failings including failing to properly administer a trust account, failing to keep proper trust records, producing numerous deficiencies in trust ledgers, transferring funds from trust contrary to legislative requirements, misappropriating trust funds, and retaining trust money in the firm’s general account.

7. The seriousness of the misconduct set out in the disciplinary application is obvious and practitioners who are guilty of such misconduct are not fit to practice.

8. It is ordered that the name of the respondent be removed from the local roll of practitioners.

Costs

1. The applicant has sought an order for costs fixed in the amount of $2,500.00.[6]

   [6]Legal Profession Act 2007 (Qld) s 465(2).

2. The Tribunal orders that the respondent pay the costs of the applicant fixed at the sum of $2,500.00, and that this sum be paid within 30 days of the date of this order.